Social Security Rules Defy Same-Sex Decision

Author: Jared Favole and Brent Kendall
Publication: Wall Street Journal
Publication Date: June 28th, 2013

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As the Obama administration moves to implement the Supreme Court's landmark ruling requiring equal federal treatment for same-sex marriages, its biggest hurdle may come in the payment of Social Security benefits.

The challenge for White House centers on the thousands of gay couples who now live in states that don't recognize their marriages.

Social Security and some other benefit programs determine the validity of a marriage based on where a couple lives, not where they were wed.

For Social Security, the issues are particularly thorny because the requirements are written into federal law, which the president can't change on his own.

"The only major program—the only big one—that requires congressional action is Social Security," said Evan Wolfson, president of the gay-rights advocacy group Freedom to Marry.

President Barack Obama weighed in on the benefits issue generally Thursday during a visit to Senegal. "It's my personal belief…that if you've been married in Massachusetts and you move someplace else, you're still married, and that under federal law you should be able to obtain the benefits of any lawfully married couple," he said. Mr. Obama then added, "But I'm speaking as a president, not a lawyer."

Both the president and the Justice Department have said they would move expeditiously to implement the Supreme Court ruling striking down the Defense of Marriage Act, which the court said would affect more than 1,000 federal laws and numerous regulations pertaining to married couples.

Legal observers said that in some cases the president may be able to implement the ruling by changing federal practices through executive orders.

In other cases, federal agencies might have to change their own written regulations to address same-sex marriage benefits, which could take time because such rule changes typically require a public-comment period.

One issue falling into this category is a Labor Department regulation governing the Family and Medical Leave Act, which allows workers to take time off to care for a spouse with a serious health condition, said Rose Saxe, a lawyer with the American Civil Liberties Union.

The current regulation would not extend those benefits to same-sex couples in states that don't recognize them, Ms. Saxe said.

On Social Security, same-sex couples living in states that recognize their marriages are likely eligible after the Supreme Court ruling to collect spousal benefits when one spouse dies or becomes disabled, or in certain other circumstances. But since federal law determines a spouse's Social Security benefits based on where the wage earner lived, couples living in many non-marriage states may have difficulty qualifying for spousal benefits, legal experts said. They said couples living in some states that allow civil unions may be able to collect.

Lawmakers have offered proposals in Congress that would recognize same-sex married couples' eligibility for federal benefits no matter where they live. Absent legislative action, couples in non-marriage states may have to file lawsuits that ask courts to strike down the Social Security provision, said Columbia University law professor Suzanne Goldberg. "I expect these lawsuits will come soon," she said.

Ms. Goldberg said it was unlikely that President Obama would unilaterally refuse to enforce the Social Security provision. She observed that his administration had continued to enforce the Defense of Marriage Act until the Supreme Court invalidated it, even though the Justice Department had argued in court that the law was unconstitutional.

Jon Davidson, legal director at Lambda Legal, a group active in gay-rights cases, said the issue of how to treat same-sex marriages in non-marriage states is only going to get bigger "because we live in a very mobile society now."

If the availability of federal benefits depends on where same-sex couples live, that could affect everything from business decisions on employee transfers to family decisions about where to retire, he said.